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I'll leave the good stuff to Ars Technica, but Howard Berman's bouncing baby copyright bill is one step closer to becoming law, sailing through the Judiciary Committee.

The bill would create a new position for a federal copyright enforcement czar, establish a new copyright enforcement division within the Department of Justice, and would also permit law enforcement agents to seize property from perpetrators of copyright infringement. 

Posted to Congress | Copyright
While I won't make any jokes about Cher or trees, or skiing, I will give a hat tip to That Other Andrew(tm) for pointing out the reintroduction of bills governing "Orphan Works" under copyright law.

For those who are unaware, it's illegal to use a copyrighted photo, image, piece of music, film, or written work without the permission of the copyright holder  or successors, including heirs. When people die, the implied copyrights of their family photographs (implied copyright means that anything you create, you own the copyright too, at least since the Copyright Act of 1976) is probably not something given much attention to in their wills.

Anyway, under current law, if you can't find the holder or heir, you can't get permission to use anything, and you can't use it. The bills, introduced last week by Sen. Patrick Leahy (D-VT) and Rep. Howard Berman (D-CA) (Andrew interviewed Rep. Berman last month at Tech Policy Summit) would create a "safe-harbor" for those who make a good-faith effort to track down owners of this stuff, and if someone pops up later would entitle them to collect something without the hassle of litigation or liability.

Doesn't this seem a bit silly? Well, it is. Who can we thank for this? 

Bono. Not the guy with the glasses, the one who was married to Cher.

Posted to Congress | Copyright | Courts
I'm sure everyone has heard that R.E.M. is letting people get to the premiere of their new album, Accelerate via the iLike Facebook Application. 

Of course, this is an attempt to keep casual downloaders from not paying for the album by allowing them to stream it (but not keep it) prior to its' April 1 release date. Streaming, of course, was popularized by Internet Radio stations, both webcasts of indie stations, and sites like Pandora and Last.Fm.

Now, the IFPI and RIAA fought tooth and nail with the U.S. Copyright Office to have royalties for streaming media raised to the point where if they are allowed to stay at current levels, internet radio stations like Pandora and Last.fm (which introduce people to new music based on their tastes) as well as independent webcast stations could die off based on the sheer absurdity of the rates, while terrestrial radio, the "old guard" of the Payola generation, pays next to nothing for broadcasting that same music over the public airwaves. 

A justification for this is that you can create a perfect digital copy from a streamed song, while you can only make an analogue audio tape, with no metadata off the radio. 

BBC2 had a short segment this morning on R.E.M. and iLike, here is a rough, rough transcript via TVEyes:


...digital opened up many new ways the record companies can take their music to fans and this is one example. this is through a service called iLike and music is a social thing, people define themselves by it and it is one of the things you talk about with your friends and sharing it is a great way to do it. this is a way of sharing music legally with other friends and you can post it on your blog or Facebook and do other things with it... 
...this is a new model for record companies to take music out there. can they make money out of it? this is a licenceed legal service and what the music business is trying to do against a backdrop of most music being available for free illegally, the record companies are trying to licence as many new services as possible to give music fans an option, because that's what we want. we want more ways for music fans to get their music. that's what the record companies would like. that's the message they would like to send out. nobody really knows. once it is available, it is available and you are trying to convince people to pay for it...a lot of artists realise you don't need a record label, you can say ""i can make it available myself."" 
very few artists can do this. rem have done this through their record company. record companies and artists can do these things and use the new digital services. what does it mean for music? do you think it is good for a band that doesn't have a label, can go out and get people listening to their music?

I see some sad double-talk here. On one hand, the labels wants to allow streaming over the 'net when they see fit, but when 'Net Radio took off, they rushed to extract every dollar out of it because they saw it compromising their existing distribution networks. Not illegally, but in the sense that in that world, they lack their traditional influence in what gets pushed to the top of the DJ's "record stack." So, with the help of the Library of Congress and the Copyright Office, they want to replace 'net radio, especially independent stations and services like Last.Fm and Pandora (which actually drive record sales by pushing new music to consumers based on their tastes) out of business, because it imperils their vertical model of middle-manning that has been in place for the past fifty years. 

On the other hand, when streaming is done through iLike and the label can tell the consumer that they're going to hear, what is hot, and what they should be streaming (and later buying) instead of offering choice, everything is great. Note that iLike doesn't get hit by those royalty rates. 

Also, don't overlook Facebook's role. They see themselves as a great content gatekeeper here. Notice how they partner with the mainstream (ABC with Politics, iLike/R.E.M./Warner Brothers with Music) in order to get themselves a patina of respectability with "old media?" Just like Jonathan Zittrain (more as I read his book and can talk more about it) I see Facebook becoming more and more an old-fashioned service in the model of CompuServe, Prodigy or AOL where they become the content service. Forgot Sara Lacy's flirty talk of a "Facebook record label." Facebook doesn't need to be the label, they just need to be the label's pet streaming platform, maybe they can build a non-iTunes MP3 download service onto a Facebook app. They also get to be the pet advertising platform for Amazon's CD sales, and Hot Topic merchandise sales. 

Facebook is becoming less and less of a tool for me to keep up with my friends and more of a rolodex with a built-in advertising platform. I used to be able to export my data to Outlook, but now they disabled that and denied the feature ever existed. Instead of value-added features, they provide vendor lock-in. I can only see my data when I choose to see their ads, and they can use my data, my "social graph" however they want. 

Forget all those "privacy controls" from last week. They mean nothing. What matters is that no matter who you allow to view parts of your "profile," Facebook still owns the data and is using it to let advertisers profile and target you, all while they become a modern day gatekeeper for all types of media. They're propping up the old guard in the hopes that it will give them a revenue stream as the next big things get killed off by royalties.

I will also be investigating the case of the missing "Export" button this week before Tech Policy Summit, and you can be sure I will be asking around about Data Portability.

Happy Easter Monday!
Posted to Copyright | Economics | Facebook | Music | Regulation | Social Networking
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Randy Saaf, from Media Defender, makes his living distributing fake songs over P2P networks. You would think he knows a thing or two about legislation that affects the music industry. However, when I asked him about Howard Berman's copyright bill and if the government had any business propping up a business model, he had no idea what I was talking about. 

Either he's clueless, or he lied through his teeth.

I also spoke with Richard Wasylik, of Ricardo & Wasylik PL, an attorney who has defended people against RIAA litigation. Wasylik and I talk about things like he dangers of using government power to help one industry, the ex parte subpoena process, and the Howard Berman copyright bill.

Audio is below.
 

Photos on Flickr
Posted to Congress | Copyright | Music | SXSW

National Journal's Andrew Noyes reports that the House Judiciary Committee has agreed with the Bush Administration that it might not be a good idea to train all FBI agents in "IP-related" crime.

The House Judiciary Courts, the Internet and Intellectual Property Subcommittee approved a bill by voice vote today that would "improve" enforcement of Intellectual Property laws. We don't know who voted yes or no on what amendments.

One thing that was stripped, however, was was Howard Berman (D-CA)'s provision that would have allowed multiple damages to be awarded for copyright infringement, as in a 10 track album would be 10 seperate fines.

On the other hand, Rep. Zoe Lofgren (D-CA) worries about the potential financial liabilities on small businesses. According to Noyes, Lofgren worried that it  would have "stifled innovation by exposing U.S. businesses to uncertain and potentially crushing liability." Lofgren would tie any such provision to a relaxation of the 1998 Digital Millenium Copyright Act.

Still on the table is Berman's brainchild: the creation of an "Intellectual Property Crime" division within the Department of Justice. If you thought the RIAA's tactics in civil litigation are draconian, imagine what USDOJ will do to music downloaders. Thankfully, Federal agencies are remarkably resistant to taking on new responsibilities. Noyes reports that Berman has said that talks with the DOJ have not gone "as quickly or as productively as I would have hoped." 

This bill is another of Berman's ham-handed attempts to make it the policy of the U.S. Government to prop up the business model of the Hollywood movie industry. He wants a new agency, possibly as high as cabinet-level, to oversee copyright and trademark law enforcement.

Judiciary Committee Chairman John Conyers (D-MI) is not expected to touch this hot potato of a bill until after Easter.

Posted to Congress | Copyright | Internet
The ProfessorStanford Daily has a nice writeup of a talk by Lawrence Lessig where he advocates the rather reasonable view that problems with copyright law should be tackled by Congress, not the Courts. Professor Lessig is probably best known for his advocacy of the "Free Culture" movement, and as lead consel in Eldred v. Ashcroft, otherwise known as the "Mickey Mouse" case. In his last lecture on "Free Culture, Copyright, and the Future of Ideas," given to a packed house at Stanford's Memorial Auditorium, the Professor reflects on his experience in the Court system and shares his realization that many problems with IP law today are political, not constitutional. Money quote:
“Since Brown v. Board of Education, liberals tend to think that all important problems must be solved by the courts,” Lessig said. “But the problem isn’t Constitutional ? it’s political, and it can only be solved by gaining the understanding of ordinary people.”
Lessig goes on to advocate the support of Congressional candidates who make three vows:
"that they will abolish earmarks, refuse contributions from lobbyists and political action committees and support publicly financed campaigns. "
Not bad ideas if you can get candidates who will go for it...but if you can't beat 'em, join em? Robert Scoble thinks the Professor himself is going to run for Congress.
Posted to All | Congress | Copyright | Politics
Super Bowl Sunday. It's become sort of a de facto holiday here in America, hasn't it? Along with the World Series, it attracts a mystique that the other major pro sports championships just don't have. Unlike the World Series, it is only one game, and has a much larger audience.With all the light shining on the NFL, anyone with a brain would think they would be looking for some good press these days, what with Senator Arlen Spector (R-PA)  calling for hearings on why the NFL destroyed tapes made in violation of rules against stealing signals by the AFC champion New England Patriots' coaching staff. 
 Sen. Arlen Specter (R-Pa.) said Friday he does not understand Goodell's reasons for destroying evidence and is considering asking theSenate Judiciary Committee, of which he is the ranking minority member, to look into the issue.          
As is always the case when Congress looks into sports leagues, Specter raised the issue of the NFL's antitrust exemption and said at a news conference the topic "has been on my mind for a long time."
 For those not in the know,  in 1961, Congress granted the NFL an exemption from antitrust laws to allow the league to enter into contracts with the television networks to broadcast their games. The NFL gets to negotiate for huge broadcast fees, but it's ok because everyone benefits from being able to watch the games on their over-the-air TV. 
Posted to All | Copyright | Sports | Television

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